Delivery of Goods under a Straight Bill of Lading: Chinese Judicial Practice and Perspective

摘要

The definition of bill of lading (B/L) provided by art.71 of the Maritime Code of the People's Republic of China (the CMC) highlights its three functions as follows: it is evidence of the contract of carriage; it serves as a receipt for goods; and is proof of delivery of the goods. However, as regards a straight bill, in Chinese maritime legal circles there is a raging debate and controversy over whether or not the carrier should deliver the goods with the original straight bill, owing to the unresolved controversy over whether a straight bill has the nature of a document of title. On this matter, there are differences in maritime judicial practice in China. In general, there are two situations: (1) when the applicable law is Chinese law, the carrier should deliver the goods against an original B/L, or he will be liable for wrongful delivery; (2) when a foreign law is applied, it depends on the specific law on delivery of goods of the foreign jurisdiction. The Provisions of the Supreme People's Court on Certain Issues Concerning the Application of Law to the Trial of Cases Involving Delivery of Goods without Original Bills of Lading (2009) (Provisions on Delivery of Goods without Original Bills of Lading) affirms the judicial practice further and provides expressly that a straight B/L is a kind of B/L, and goods under a straight B/L should also be delivered with the original one. However, it is unreasonable that art.9 of the Provisions on Delivery of Goods without Original Bills of Lading provides that the right of stoppage in transit of the shipper under a straight B/L has priority over the right to take delivery of goods of the holder (consignee) of the straight B/L. It is recommended that certain limits should be put on the application of art.308 of the Contract Law of the People's Republic of China and art.9 of the Provisions on Delivery of Goods without Original Bills of Lading separately, referring to the practice which prevails internationally and to art.46 of the Rotterdam Rules.